United States District Court, S.D. California
September 19, 2005.
BEATRIZ ESCOBEDO, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND
(2) GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Beatriz Escobedo ("Escobedo") brings the instant
motion for summary judgment seeking the reversal of Commissioner
Jo Anne B. Barnhart's ("defendant") denial of Escobedo's
application for disability insurance benefits, or, in the
alternative, for a remand to the Social Security Administration
for a decision in accordance with the applicable law. Defendant
moves for summary judgment on cross-motion. For the reasons
stated herein, the Court denies Escobedo's motion for summary
judgment and grants defendant's cross-motion for summary
A. Work and Medical History
1. Physical Impairments
Escobedo was born on September 7, 1941, and was fifty-nine
years old at the time of her alleged disability onset. (Administrative Transcript ("Tr.") 26.)
Escobedo has no formal education, and has past relevant work as a
fabricating machine operator. Id. Escobedo claims disability
from May 28, 1998 due to left hand and arm problems. (Tr. 13.)
Escobedo has undergone three surgeries on her left hand: one on
her left finger in 1995 and two on her left thumb, the first in
1997 and the second in 1998. (Tr. 143, 190, 219-220.) Escobedo
first underwent surgery on her left thumb in November 1997 in
order to relieve the pain caused by triggering.*fn1 While
Escobedo continued to suffer pain in her left thumb after the
surgery, her orthopaedic surgeon, Dr. John G. Ellis, found that
she could continue her employment duties without any
restrictions. (Tr. 128-129.)
In July 1998, Escobedo began seeing Dr. Mark H. Mikulics, a
board certified orthopedic surgeon with a specialty in hand
surgery. Dr. Mikulics was Escobedo's primary treating physician
from July 1998 through June 1999. (Tr. 189-238.) On August 19,
1998, Dr. Mikulics opined that Escobedo's 1997 surgery "was not
successful [because] [s]he continues to complain of pain and
triggering." (Tr. 229.) As a result, he found that she was
temporarily partially disabled and could not return to work
unless modified duty was available. (Tr. 230.) Dr. Mikulics
recommended a second surgery on Escobedo's left thumb in order to
treat her trigger. Id.
Escobedo underwent a second left thumb flexor tenosynovectomy
in order to relieve the pain caused by her left thumb trigger on
October 2, 1998. (Tr. 197.) Escobedo continued to see Dr.
Mikulics for treatment after the surgery. Dr. Mikulics performed
a final orthopedic examination of Escobedo on June 9, 1999. (Tr.
189-193.) Escobedo continued to complain of thumb pain. (Tr.
190.) Dr. Mikulics opined that Escobedo: (1) was limited to very
light grasping; (2) was precluded from repetitive gripping; (3)
had lost ninety percent of her preinjury capacity for pinching;
and (4) had lost fifty percent of her preinjury capacity for
twisting, torquing, pushing, and pulling. As a result, he found
that Escobedo could not perform the usual and customary duties at
her then present employment and qualified for injured worker and
vocational rehabilitation. (Tr. 193.)
On March 13, 2000, Dr. Paul C. Milling, a board certified
orthopedic surgeon examined Escobedo. Escobedo complained of pain
in her left hand, wrist and fingers, of weakness in her left
hand, and of an inability to use the hand. (Tr. 240-241.)
However, on examination, Dr. Milling found "no limitation of
motion" in her wrist or hand; that Escobedo could make a "full
fist" and "fully" extend her fingers; and that she was able to
flex her thumb without catching. (Tr. 241.) Dr. Milling also
noted that Escobedo displayed fine motor control. Dr. Milling
found Escobedo's claims of generalized tenderness through her
wrist and thumb to be "all non-specific, and . . . very
inappropriate." Id. Based on his examination, Dr. Milling
concluded that Escobedo could lift and carry twenty pounds
occasionally and ten pounds frequently; stand and walk for six
hours cumulatively in an eight-hour day; stoop and crouch
occasionally; and had the ability to use her hands and fingers
for repetitive hand/finger actions. (Tr. 241-242.)
2. Testimony at the Administrative Hearing
Escobedo, a medical expert, and a vocational expert testified
at Escobedo's administrative hearing before Administrative Law
Judge ("ALJ") Albert Tom. Escobedo was represented by counsel,
David M. Shore. (Tr. 22.)
Escobedo testified that she had worked as a machine operator
for the past twenty-two and one half years in the fabrication of
hospital parts, like masks and intravenous tubes. (Tr. 26-27.)
She testified that she liked her job, but because she could
"barely use" her left hand, she was no longer able to do it. (Tr.
28.) Her daily activities include visiting her daughter and her
grandchildren. (Tr. 31.) Escobedo does light housework and can
cook as long as she does not have to chop. Id.
Dr. Eric C. Yu testified as a medical expert at the hearing.
(Tr. 36-45.) Dr. Yu, based on his review of the medical evidence
in the record, opined that Escobedo was limited to light level
work; that she was limited to occasional stooping, bending, and
crouching for prophylactic reasons; that she was limited,
prophylactically, to occasional overhead use of her left hand;
that she was precluded, also prophylactically, from climbing
ladders and being around vibrating machinery; and that she was
precluded from constant or repetitive fingering and handling
(which by definition, he stated, included grasping). (Tr. 41-42.)
Robert Metcalf testified at the hearing as a vocational expert.
(Tr. 45-53.) Metcalf classified Escobedo's past work as a
fabricating machine operator. (Tr. 46.) The ALJ posed two
hypothetical questions to Metcalf. The first hypothetical
presupposed a fifty-nine year old woman with no formal education,
with physical limitations as testified to by Dr. Yu. Metcalf
opined that a woman so limited would be able to perform her past
relevant work. (Tr. 47.) The second hypothetical presupposed a
woman with the limitations as testified to by Escobedo. Metcalf
testified that a person so limited would not be able to perform
her past relevant work and would not have any transferable
skills. (Tr. 48.)
B. Procedural Background
Escobedo filed an application for a period of disability and
disability insurance benefits ("DBI") under Title II of the
Social Security Act on January 18, 2000. (Tr. 86-89.) The Social
Security Administration denied Escobedo's application initially
and upon reconsideration. (Tr. 57-61, 63-66.) Thereafter,
Escobedo requested a hearing before an Administrative Law Judge.
On May 8, 2001, ALJ Albert Tom held a de novo hearing with
Escobedo, her attorney, a vocational expert, and a medical
expert. (Tr. 456.) After the hearing, the ALJ found that Escobedo
was not disabled because she could perform her past relevant
work. (Tr. 18.) The Appeals Council denied Escobedo's application
for administrative review. (Tr. 63-66.) Escobedo now seeks
judicial review of the ALJ's decision under 42 U.S.C. § 405 (g).
On July 13, 2005, Escobedo moved for summary judgment. (Doc.
No. 19.) On March August 11, 2005 defendant filed a cross-motion
for summary judgment along with an opposition to Escobedo's
motion for summary judgment. (Doc. No. 21.) Escobedo did not file
an opposition to defendant's cross-motion for summary judgment.
(Doc. No. 17.) The Court now turns to these motions.
A. Scope of Review
Section 405(g) of the Social Security Act ("the Act") affords
an unsuccessful claimant the opportunity to seek judicial review
of a final agency decision of the Commissioner of Social Security. 42 U.S.C. § 405(g). In reviewing the Commissioner's
decision, a court must consider the record as a whole, weighing
both the evidence that supports and detracts from the
Commissioner's conclusions. Desrosiers v. Sec'y of Health &
Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). The scope of
judicial review is limited, however. A reviewing court may not
disturb the Commissioner's final decision unless the court finds
either that (1) the ALJ's findings of fact are not supported by
substantial evidence, or (2) the ALJ failed to apply the proper
legal standards. Flaten v. Sec'y of Health & Human Servs.,
44 F.3d 1453, 1457 (9th Cir. 1995). The term "substantial evidence"
refers to such relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to
support a conclusion. Tylitzki v. Shalala, 999 F.2d 1411, 1413
(9th Cir. 1993); Desrosiers, 846 F.2d at 576 (substantial
evidence means "more than a scintilla, but less than a
preponderance"). If the evidence supports more than one rational
interpretation, the court must uphold the ALJ's decision. Allen
v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). A reviewing court
must set aside the ALJ's decision if the ALJ failed to apply the
proper legal standards in weighing the evidence or in reaching
his or her decision. Benitez v. Califano, 573 F.2d 653, 655
(9th Cir. 1978).
Section 405(g) permits a court to enter a judgment affirming,
modifying, or reversing the Commissioner's decision, or remanding
the matter to the Social Security Administration for further
proceedings. 42 U.S.C. § 405(g). A reviewing court may credit
evidence and remand for an award of benefits outright where (1)
the ALJ has failed to provide legally sufficient reasons for
rejecting such evidence, (2) there are no outstanding issues to
be resolved before a determination of disability can be made, and
(3) the record clearly shows that the ALJ would be required to
find the claimant disabled were the evidence credited. Smolen v.
Chater, 80 F.3d 1273, 1292 (9th Cir. 1996).
B. Substantive Legal Standard
In order to qualify for disability benefits, a plaintiff must
establish a medically determinable physical or mental impairment
that is expected to result in death or to last for a continuous
period of at least twelve months. 42 U.S.C. § 423(d)(1)(A);
Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474, 1476
(9th Cir. 1989). The plaintiff has the initial burden of proving
that the disabling condition prevented her, during the relevant period,
from engaging in any of her previous occupations. Sanchez v.
Sec'y of Health & Human Servs., 812 F.2d 509, 511 (9th Cir.
1987). The burden then shifts to the Commissioner to show that
the plaintiff can engage in other types of substantial gainful
work available in the national economy. Gonzales v. Sec'y of
Health & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). If
the plaintiff is able to perform a number of other jobs existing
in the national economy consistent with the plaintiff's medically
determinable impairments, functional limitations, age, education,
and work experience, then the plaintiff is not disabled within
the meaning of the Act. Green v. Heckler, 803 F.2d 528, 530
(9th Cir. 1986).
The Commissioner has established a five-step sequential process
for determining eligibility under the Act:
Step 1: Is the claimant presently working in a
substantially gainful activity? If so, the claimant
is "not disabled." If not, the evaluation proceeds to
Step 2: Is the claimant's impairment severe? If not,
the claimant is "not disabled." If the claimant's
impairment is severe, the evaluation proceeds to step
Step 3: Does the impairment "meet or equal" one of a
list of specific impairments described in the
regulations? If so, the claimant is "disabled." If
the claimant's impairment neither meets nor equals
one of the listed impairments, the evaluation
proceeds to step four.
Step 4: Is the claimant able to do any work that he
has done in the past? If so, the claimant is "not
disabled." If not, the evaluation proceeds to step
Step 5: Is the claimant able to do any other work? If
not, the claimant is "disabled." If the claimant can
do other work, the Commissioner must establish that
there are a significant number of jobs in the
national economy that the claimant can do.
20 C.F.R. §§ 404.1520(a)-404.1520(f) (2002). See also
Tackett v. Apfel, 180 F.3d 1094
, 1098-99 (9th Cir. 1999).
C. Decisions of the Social Security Administration
At step two of the process, the ALJ found that Escobedo
suffered from a severe left hand impairment. (Tr. 17; see
20 C.F.R. § 404.1521.) At step three, the ALJ found that Escobedo's
impairment was not attended by clinical findings meeting or
equaling the criteria of the impairments set forth in Appendix 1,
Subpart P, of Social Security Regulation No. 4. Id. At step
four, the ALJ found that Escobedo was able to perform her past
relevant work. Id. On the basis of this finding, the ALJ
concluded that Escobedo was not disabled under the Act. Id. The ALJ's specific findings were:
1. The claimant met the disability insured status
requirements of the Act on May 28, 1998, the date the
claimant stated she became unable to work, and
continues to meet them through December 2003.
2. The claimant has not engaged in substantial
gainful activity since May 28, 1998.
3. The medical evidence establishes that the claimant
has severe left hand impairment, but that she does
not have an impairment or combination of impairments
listed in, or medically equal to one listed in
Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of disabling pain,
excess pain, and limitation, when considered pursuant
to the law of the Ninth Circuit Court of Appeals and
Social Security Ruling 96-7p, have been rejected for
the reasons enunciated in the rationale portion of
this decision, which the undersigned believes are
clear and convincing and are incorporated herein by
5. The claimant has the residual functional capacity
to perform work related activities except for work
involving lifting or carrying more than 10 pounds
frequently and 20 pounds occasionally; more than
occasional bending, crouching, stooping, and overhead
use of the left hand; any climbing of ladders, being
around vibrating equipment, and constant or
repetitive handling or fingering (20 SFR 4040.1545).
6. The claimant's past relevant work as a fabricating
machine operator did not require the performance of
work related activities precluded by the above
limitation(s) (20 CFR 404.1565).
7. The claimant's impairments do not prevent the
claimant from performing her past relevant work.
8. The claimant was not under a "disability" as
defined in the Social Security Act, at any time
through the date of the decision (20 CFR
D. Escobedo's Allegations of Error
1. The ALJ Improperly Relied on the Vocational Expert's
Responses to the Hypotheticals
Escobedo asserts that the ALJ's finding that Escobedo could
return to her past relevant work is not supported by substantial
evidence because the vocational expert improperly used the
Dictionary of Occupational Titles ("DOT") in reaching his
conclusion.*fn2 (Memo. ISO Motion at 17:9-12.)
"Hypothetical questions posed to the vocational expert must set
out all the limitations and restrictions of the particular claimant . . . [I]f the
assumptions in the hypothetical are not supported by the record,
the opinion of the vocational expert that claimant has a residual
working capacity has no evidentiary value." Embrey v. Bowen,
849 F.2d 418, 422 (9th Cir. 1988). The ALJ is free, however, to
"accept or reject restrictions in a hypothetical question that
are not supported by substantial evidence," and is not required
to accept opinion evidence on the ultimate question concerning
claimant's inability to perform work. Osenbrock v. Apfel,
240 F.3d 1157, 1164-65 (9th Cir. 2001). Lastly, an ALJ may properly
limit a vocational expert hypothetical to those impairments
supported by substantial evidence. Id.
Escobedo argues that the vocational expert's testimony has no
evidentiary value because he relied on the wrong DOT section. At
the administrative hearing, the vocational expert testified that
the most accurate DOT section for Escobedo's past relevant work
was 712.684-042. (Tr. 48.) DOT number 712.884-042 details the
work requirements of an artificial breast fabricator.*fn3
Escobedo argues that her past relevant work is properly defined
as a surgical garment assembler.*fn4 (Memo. ISO Motion at 14:3-11.) Escobedo argues that this
distinction is important because, while both jobs are considered
light work, industrial, and unskilled, "an assembler of surgical
garments requires a higher level of specific vocational
preparation and more advanced general educational development."
(Memo. ISO Motion at 14:6-9.) It is unclear why Escobedo believes
that this distinction is important. If anything, the latter
classification supports the ALJ's conclusion that Escobedo was
not disabled because she is able to handle more complex assembly
Further, to the extent that Escobedo attempts to characterize
the vocational expert's testimony as inconsistent with the above
DOT definitions, she fails. Escobedo claims that the vocational
expert did not consider the "frequent" handling and fingering
requirements of Escobedo's past relevant work. To the contrary,
the vocational expert testified that the DOT classified
Escobedo's job, as well as most machine jobs, as requiring
"frequent" reaching, handling, and fingering. (Tr. 48.) The
vocational expert defined "frequent" as being "one third to two
thirds of the day," and specifically stated that it did not mean
constant. Id. This testimony is consistent with the DOT section
the vocational expert cited, 712.684-042, as well as the DOT
section upon which Escobedo relies, 712.684-010. Accordingly,
Escobedo's argument that the vocational expert did not address
the fact that Escobedo's past relevant work required "frequent"
handling and fingering is wholly without merit.
Lastly, the ALJ was not required to incorporate the limitations
found by Dr. Mikulics into his hypothetical questions to the
vocational expert because he properly rejected Dr. Mikulics's
limitations. (Tr. 16.) The ALJ rejected Dr. Mikulics's opinion
that Escobedo could not work because it was inconsistent with and
not supported by his contemporaneous examination findings. (Tr.
16; see Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989)
(no error where ALJ rejected treating physician's opinion because
findings were inconsistent with contemporaneous findings). Since
the ALJ rejected Dr. Mikulics's findings, he did not err in
excluding Dr. Mikulics's limitations from the hypotheticals he posed to the vocational
expert. Osenbrock, 240 F.3d at 1164-65.
In sum, the vocational expert's opinion constituted substantial
evidence upon which the ALJ properly relied in concluding that
Escobedo was not disabled under the Act.
For the foregoing reasons, the Court finds that the ALJ's
decision was supported by substantial evidence and not based on
legal error. The Court therefore DENIES Escobedo's motion for
summary judgment in its entirety, and GRANTS defendant's
cross-motion for summary judgment in its entirety.
IT IS SO ORDERED
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